Major Setback for Unified EP Patent System

 Given the often prohibitive expense of obtaining patent protection in Europe (often due to translation requirements in individual EP countries), applicants have been advocating for a unified European patent system for years.  Respondents to our recent US IP Trends Indicator echoed this sentiment, with a majority of them in favor of single European patent.

However, creation of such a system encountered a major setback yesterday when Europe’s highest court, the Court of Justice, issued an opinion that the proposed European and Community Patent Court would not be compatible with EU law and “would alter the essential character of the powers conferred on the institutions of the European Union and on the member states.”  Although this decision is an opinion and not a formal ruling, it opens the door for legal challenge from EU member states who could refer to the court’s own opinion regarding the conflict between the Patent Court and EU law. 

The European Commission responded by stating that it would carefully review the opinion “to find as quickly as possible the best solutions in the interest of the patent system and its users.”  The European Commission also noted that the proposed voluntary EU patent system currently proceeding via the doctrine of enhanced cooperation is not affected by this recent opinion.


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